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Supreme Court to consider devolved Brexit legislation

The Supreme Court is once again being asked to rule in relation to Brexit.

On this occasion the Attorney General and the Advocate General for Scotland are seeking a declaration as to whether the Welsh Assembly’s ‘Law Derived from the European Union (Wales) Bill’ and the Scottish Parliament’s ‘UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill’ are within the competence of the respective devolved administrations.

The issue has arisen in response to the publication of the European Union (Withdrawal) Bill in July last year. As we have set out previously, the Bill’s starting point is that post-Brexit, the devolved administrations cannot legislate to amend retained EU-derived laws, unless the laws in question would have been within the competence of the devolved administration prior to the UK’s departure from the EU. The Bill accordingly proposed a number of consequential amendments to existing devolution legislation to reflect this position.

However, there was criticism from both devolved administrations that the EU (Withdrawal) Bill as drafted did not return powers within areas of devolved competencies from the EU to them.

Following the failure by the UK Government and devolved administrations to reach agreement as to the wording of the EU (Withdrawal) Bill in relation to devolution issues, the Scottish Parliament and Welsh Assembly introduced the respective pieces of legislation which are now under challenge.

According, to the Executive Summary published by the Scottish Parliament, “The [Scottish] Bill has been introduced following disagreement between the UK and Scottish Governments over the content of the European Union (Withdrawal) Bill (EUWB) …. in the event that the Scottish Parliament does not give consent to the EUWB, it is possible the UK Government may wish to remove the devolution related clauses from the Bill or, alternatively, may proceed with the EUWB without consent . If the UK Government chose to remove the devolution related clauses, it could leave Scots law unprepared for the UK's departure from the EU. In order to address that eventuality, the Scottish Government has chosen to introduce the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.”

More generally, both pieces of legislation would seek to pre-empt problems in the continued functioning of laws in Scotland and Wales following Brexit.

By way of example, according to the Scottish Parliament’s Executive Summary, “The purpose of the [Scottish] Bill is to ensure that when the UK leaves the European Union, Scots law continues to function seamlessly without any interruptions or gaps”. To achieve this it: “retains in domestic law EU law currently operating in devolved; gives the Scottish Ministers the powers needed to ensure that devolved law continues to operate effectively after UK withdrawal; and gives the Scottish Ministers the power to, where appropriate, ensure that Scotland's devolved laws keeps pace after UK withdrawal with developments in EU law”.

The summary of the Welsh Bill published by the Welsh Assembly is in similar terms, noting that the Bill “enables the Welsh Ministers to legislate to maintain regulatory alignment with the EU in order to facilitate continued access to the EU market for Welsh Businesses”.

According to the UK Government, the referral to the Supreme Court is necessary to avoid uncertainty. Accordingly, for the second time since the EU referendum, the Supreme Court will be called upon to consider important questions of constitutional law.

Brexit: planning for the future as negotiations continue

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